Franz Falk Brewing Co. v. Hirsch, No. 2836

No. 2836 | Tex. | Oct 17, 1890

STAYTON, Chief Justice.

Aaron Loeb obtained a judgment against appellant company in the District Court for Dallas County for $3710.76, which was assigned to appellee.

To secure the payment of that judgment Hirsch sued out a writ of garnishment on January 5, 1888, which was served on E. M. Tellman as garnishee, who answered that he was indebted to appellant in the sum of $1489.10, but prayed that appellant be made party to the proceeding.

Appellant intervened and in defense alleged that Hirsch instituted a suit in a Circuit Court in the State of Wisconsin against it on the judgment made the basis of this proceeding in garnishment; that therein appellantprocured an order restraining Hirsch from further proceeding with the cause until further order from the court; that appellant instituted in the same court a suit against Loeb and Hirsch, in which it alleged that it was the owner of a judgment rendered against Loeb by the District Court for Dallas County in favor of A. Guenther & Co., which amounted to more than the judgment in favor of Loeb, which it sought to offset against the judgment assigned by Loeb to Hirsch, and as a ground for such relief stated that the assignment through which Hirsch claimed was only colorable and made for the purpose of defeating the right to set-off.

While the action last referred to was pending Hirsch dismissed his action, but in entering the order this was expressed to be without prejudice to right of appellant to prosecute the action instituted by it.

Loeb and Hirsch were citizens of Texas and appellant domiciled or resident in the State of Wisconsin.

Notice of the institution of the suit by appellant was served upon the attorneys representing Hirsch in the action brought by him, and notice thereof was served on Hirsch within the State of Texas by some private person in accordance with the provisions of some statute in force in the State of Wisconsin, but Hirsch was not otherwise cited, nor did he appear in that cause either in person or by attorney.

On hearing of the suit instituted by appellant the Circuit Court adjudged the facts to exist which entitled appellant to have satisfied by offset or counter-claim the judgment of which Hirsch claims to have been the owner, and so adjudged, and besides entered a decree restraining Hirsch, Loeb, their agents, and attorney from collecting or attempting to collect the judgment made the basis of the writ of garnishment in the cause before us.

These matters appellant pleaded in bar of this action, but the court below held that the judgment rendered in the State of Wisconsin against Hirsch was inoperative, because that court never acquired jurisdiction over him in such manner as to empower it to make a binding adjudication against him.

If the Circuit Court of Wisconsin had jurisdiction over Hirsch its judgment must be given the same effect when called in question here that would be given to it in Wisconsin; but if it had not jurisdiction finally to adjudicate the rights of the parties growing out of their ownerships of the respective judgments, then the decision of the court below is correct.

If, as might have been done had the suit been brought by Hirsch here in a court of this State, the right of the parties had been adjudicated in the action brought by him, we think there could be no doubt that the judgment would be binding upon him; for by bringing that action he therein gave the court jurisdiction not only to hear his case, but also to hear any defenses which might legally be urged against it, and as the law and facts might require to render a judgment decisive of the rights of the parties.

Such a course, however, was not pursued, and we are of opinion that with the dismissal of that action went all jurisdiction conferred on the ■court by the voluntary act of Hirsch.

Hirsch never voluntarily appeared in the suit brought by appellant against him, which was original and not ancillary in its character, and it ■can not be held that notice to the attorney employed by him to prosecute the action brought by himself would clothe the court with power to finally adjudicate his right in another original proceeding.

Notice to the attorneys of Hirsch of the restraining order entered in the action brought by him was sufficient to render him liable for contempt had he violated it, but with the dismissal of that action went the restraining order, only temporary in its nature, as well as all jurisdiction over the person of Hirsch.

The only further ground on which it can be claimed that the Wisconsin court had jm-isdiction over Hirsch is that some kind of notice or summons issued from that court was served upon him in Texas.'

That such service could not confer such jurisdiction is well settled. Pennoyer v. Neff, 95 U.S., 714" court="SCOTUS" date_filed="1878-01-21" href="https://app.midpage.ai/document/pennoyer-v-neff-89656?utm_source=webapp" opinion_id="89656">95 U. S., 714; Harkness v. Hyde, 98 U.S., 476" court="SCOTUS" date_filed="1879-04-21" href="https://app.midpage.ai/document/harkness-v-hyde-89892?utm_source=webapp" opinion_id="89892">98 U. S., 476; York v. State, 73 Texas, 654; Masterson v. Little, 75 Tex., 682" court="Tex. App." date_filed="1890-01-28" href="https://app.midpage.ai/document/masterson-v-little-4896450?utm_source=webapp" opinion_id="4896450">75 Texas, 682.

There is no error in the judgment and it will be affirmed.

Affirmed-

Delivered October 17, 1890.